Commonwealth v. Fariza A. Elawad.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-785

COMMONWEALTH

vs.

FARIZA A. ELAWAD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of assault and battery and resisting arrest.1 The

victim of the assault and battery was the defendant's twelve

year old daughter. At trial, there was no dispute that the

defendant struck her daughter in the face. The defendant

claimed however, that she was not criminally liable for her

conduct because she was exercising her parental privilege to

discipline her child. On appeal, the defendant argues that the

Commonwealth failed to present sufficient evidence to disprove

her defense of parental privilege beyond a reasonable doubt and

1The jury found the defendant not guilty of disorderly
conduct.
also failed to introduce sufficient evidence to support a

conviction of resisting arrest. We affirm.

Background. During the evening of February 4, 2019, three

police officers from the Stoughton police department went to the

defendant's home to conduct a well-being check on her daughter,

whom we shall call Sally. The officers spoke with the defendant

and Sally in the driveway. Sally appeared "sad and upset," and

was "borderline crying." According to one of the officers, as

Sally was talking to them, the defendant became "upset" and

"unhappy" about what Sally was telling them. Another officer

testified that the defendant became "enraged." All three

officers observed the defendant step toward Sally and strike her

in the face with a closed fist. The punch caused Sally to lose

her balance and she almost fell to the ground. One officer

testified that "she [the defendant] hit [Sally] probably as hard

as I've ever seen a woman hit another person," and the "hollow

sound" of the punch made him "cringe." All three officers were

taken aback by the defendant's conduct. Two officers testified

that they were in "shock" and the other said "I couldn't even

believe my eyes." The daughter weighed about 110 pounds and was

considerably smaller than the defendant, who weighed over 200

pounds.

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The officers then informed the defendant that she was under

arrest and attempted to handcuff her. The defendant began

yelling and "screaming" that she was a good mother, could do

what she wanted to her daughter, and would do it again. The

defendant flailed her arms, pulled away, and then lowered

herself to the ground. The officers needed to use two sets of

handcuffs to restrain her.

As previously noted, the primary theory of the defense to

the assault and battery charge was that the defendant had a

right to discipline her daughter. The defendant asserted her

defense of parental privilege through cross-examination of the

officers, argument, and the testimony of her husband, who

explained that physical discipline was an accepted practice in

their home and within the family's religious and cultural

beliefs.

Discussion. At the close of the Commonwealth's case-in-

chief and at the close of all the evidence, the defendant filed

motions for required findings of not guilty, which were denied.

In evaluating the denial of a motion for a required finding of

not guilty at the close of the Commonwealth's evidence, we view

the evidence in the light most favorable to the Commonwealth to

determine whether any "rational trier of fact could have found

the essential elements the crime beyond a reasonable doubt"

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(quotation and citation omitted). Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979). In evaluating such a motion filed at

the close of all the evidence, "we consider the state of the

evidence . . . to determine whether the Commonwealth's position

as to proof deteriorated after it closed its case."

Commonwealth v. Semedo, 456 Mass. 1, 8 (2010), quoting

Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).

1. Parental privilege defense. In Commonwealth v. Dorvil,

472 Mass. 1, 10 (2015), the Supreme Judicial Court recognized

parents' rights to use reasonable limited physical force to

discipline their child. The privilege provides that no criminal

liability will attach to a parent's use of force against his or

her child as long as:

"(1) the force used against the minor child is reasonable;
(2) the force is reasonably related to the purpose of
safeguarding or promoting the welfare of the minor,
including the prevention or punishment of the minor's
misconduct; and (3) the force used neither causes, nor
creates a substantial risk of causing, physical harm
(beyond fleeting pain or minor, transient marks), gross
degradation, or severe mental distress."

Id. See Commonwealth v. Rosa, 94 Mass. App. Ct. 458, 461

(2018). "[E]ach of the three prongs constitutes a question for

the trier of fact." Dorvil, supra at 13. As is the case with

other affirmative defenses, "the Commonwealth bears the burden

of disproving at least one prong of the defense beyond a

reasonable doubt." Id.

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Viewed in the light most favorable to the Commonwealth, we

need go no further than evaluating the evidence regarding prong

one of the parental discipline defense to conclude that the

evidence adduced at trial was sufficient beyond a reasonable

doubt to meet the Commonwealth's burden. The officers'

testimony established that the defendant punched Sally with such

force that the daughter, who was smaller in stature than the

defendant, was nearly knocked over by the blow. The sound of

the impact made one officer "cringe." All three officers said

they were shocked by the incident. Based on this testimony, a

rational trier of fact could conclude beyond a reasonable doubt

that the force used was not reasonable.

Furthermore, nothing in the defendant's case caused the

Commonwealth's evidence to deteriorate. To the contrary, the

defendant's husband acknowledged during cross-examination that

hitting a child with a closed fist was not appropriate.

Next, the defendant claims that the Commonwealth did not

meet its burden of proving that the defendant resisted arrest

beyond a reasonable doubt. A conviction for resisting arrest

requires the Commonwealth to prove beyond a reasonable doubt

that the defendant:

"knowingly prevents or attempts to prevent a police
officer, acting under color of his official authority, from
effecting an arrest of the actor or another, by: (1) using
or threatening to use physical force or violence against

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the police officer or another; or (2) using any other means
which creates a substantial risk of causing bodily injury
to such police officer or another."

Commonwealth v. Grandison, 433 Mass. 135, 144 n.18 (2001),

quoting G. L. c. 268, § 32B. "The test to determine whether a

person understood that they were being arrested is an objective

one; i.e., 'what a reasonable man, innocent of any crime, would

have thought had he been in the defendant's shoes.'"

Commonwealth v. Soun, 82 Mass. App. Ct. 32, 36 (2012), quoting

Commonwealth v. Montoya, 73 Mass. App. Ct. 125, 127 (2008).

The defendant claims that a reasonable person in her

position would not have known that she was under arrest and that

the mere act of flailing her arms and pulling away from the

officers did not create a substantial risk of bodily harm. This

argument ignores the requirement that the evidence must be

viewed in the light most favorable to the Commonwealth. There

was testimony from three police officers, all of whom were in

uniform, that the defendant was informed that they were placing

her under arrest. And, while none of the officers suffered any

injury, the defendant's reaction to their attempt to handcuff

her posed a potential danger of physical harm. The defendant

used physical force to resist: she flailed her arms, pulled

away, and leveraged her body weight to force herself to the

ground. She continued to yell and scream that her actions were

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justified and never complied with the officers' requests. She

instead resisted to the point where two sets of handcuffs were

required to restrain her. These facts were sufficient to

establish the elements of resisting arrest beyond a reasonable

doubt.

Judgments affirmed.

By the Court (Vuono, Meade &
Hand, JJ.2),

Clerk

Entered: January 6, 2025.

2 The panelists are listed in order of seniority.

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